Daughter's DUI

What is the name of your state? North Dakota

My 22 yr old daughter got a DUI two weeks ago. The BAC results just came back today. Her level was .08 which as of August "03" is the new limit for a DUI. Prior to that the level was .10

She was in an accident with another vehicle in which no one was injured and freely admitted when asked to having had a couple of beers earlier. This was before being informed of her rights etc.

My questions

1. More than two hours time elapsed between the accident and the blood test. She thinks they did a UA at the hospital but no other tests were given. Her lawyer says the DMV sets the time limit at 2 hours so he is apealing the suspension. How likely is the DUI to be dropped if they DMV rejects the BAC results?

2. Is the rising BAC defense applicable in this instance?

She was not given a choice of tests for her alcohol level.

Are there any other issues we should take a look at here?

Thank you for any advice
Laurie

Take a look at this site and decide whether or not your daughter should get off.

[url]http://www.onlyinternet.net/bmeyer/drunkdriving.htm[/url]

I appreciate your taking the time to reply to my post. I had browsed through this thread before posting and looked at the site you mentioned.
This offense was my daughters first ever drug or alcohol related charge and she is in college full time. My hope is that she learns the lesson provided regardless of how the hearing goes and does not make the same error in judgement again. If not - she deals with it on her own.

Again, thanks for the reply
Laurie

Laurie

Are you asking if everything should be or will be dropped. The answer is I do not know. What I do know is; just because the DMV drops it, it does not mean the courts will.

Basically what happens is: If the DMV drops it and the court drops it than it is like it did not happen (attorney fees asede). If the DMV drops it and the court says "guilty" than the DMV will pick it back up and also say "guilty". If the DMV says guilty and the court says not guilty, you have to do what DMV says. To make a long story short. To win you have to beat both the court and the DMV. The answer to your ? is yes, you can use the 2 hour defense in court, but when you go to court, it does not matter what the DMV says. I just hope your daughter understands that if she goes to court and is found "guilty" the DMV will reissue a guilty verdict.



Bini

Bini

Thank you so much for the information. Our lawyer sort of explained to me that the system is a two tier system including the DMV and the court. I did not realize though that if the DMV rejects the BAC results, and then the court finds her guilty - that the DMV could alter that decision. I appreciate your time in posting an answer.

Laurie

My daughter says a UA was done at the hospital when they were checking her out. ( no injuries) Although the BAC results are back there has been no mention of the UA results. Could these results have any impact either way?

It sounds like the accident would be the biggest concern. What was the circumstances of that? Was it a garden-variety fender bender or did she drive through someone's yard and hit a parked car? Under those BAC testing circumstances, it seems like a good lawyer would be able to challenge those pretty well. A two-hour old breathe test might be a real problem for the state and urine tests don't necessarily tell you how 'impaired' someone is because it measures alcohol that has already been metalbolized. Someone could have a dirty urine test and be .00 on the breathe. Pleaing down to Reckless Driving is common for first time offenders with no major circumstances (injuries, refusal to test, irrational behavior, etc). If he can get that for her, then the suspension will be dropped and she won't have to worry about SR-22 (at least in my state). The lawyer may even give an option to fight the charge in trial, but that will cost her a lot more cash. From what you're saying, it sounds like she may get a cheap lesson. Hopefully she'll not treat as 'getting off' and learn from it and not end up killing someone or herself someday. Again, a lot has to do with the accident. Depending on how that happened, that could be a problem.

The accident happened because she made a left turn and failed to yield. She was cited. No one was injured but all checked out at the local hospital. The officer who responded to the accident wrote in his report that she was cooperative and upbeat. He stated that he tested her due to a smell of alcohol. She had a passenger in her car who admitted to drinking before getting into the car as well. Our lawyer did tell us that the accident could be a problem in having the charge reduced but he thought the two hour BAC issue was a strong one. Right now we are waiting to see if the DMV rejects the results.

Thank you for the information and thoughts on this. I do hope she learns from this and from what she is telling me, she is looking at a possible reduction of the charge as an opportunity for a second chance.

Thank you again